Human Trafficking, Dublin II and Certification

In AA (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 23 the Court of Appeal (Longmore and Maurice Kay LJJ, Sir David Keene) unanimously affirmed Mrs Justice Thirlwall’s decision in the High Court. From AA’s perspective, the claimant/appellant in these judicial review proceedings, the case raised complicated issues under the Council of Europe Convention on Action against Trafficking in Human Beings 2005.

Proceedings in the Court of Appeal (Sir David Keene delivering the judgment) were connected to two decisions – related to human trafficking and human rights – made by the UK Border Agency in June 2011. For the SSHD the case was very much about returning AA to Belgium in accordance with the Dublin II Regulation and certifying her human rights claims as “clearly unfounded.”

Appellate proceedings in the Court of Appeal were connected to decisions made by the SSHD while reconsidering AA’s claims and in that sense the Court “found itself sitting as a court of first instance to deal with a challenge to decisions which were not even in existence when Thirlwell J gave her judgment” (at para. 111). The Court joined the AIRE Centre as intervener but refused to widen proceedings on potential conflicts between national legislation and European Union law.

AA, an Iraqi Kurdish woman, had entered the UK clandestinely through Belgium in 2009. She made asylum claims in Belgium and the UK. While claiming asylum in the UK she provided false information and later conceded that she had concocted stories and omitted to mention her stay in Belgium. It was not in dispute, however, that AA had become pregnant and had an abortion (both by choice). During her “journey” to the UK, however, she was attacked by the men around her – both family members and “friends” – who inflicted serious injuries to her eyes and face.

Communications between the Belgian and UK authorities established that prior to arriving in the UK, AA claimed asylum in Belgium and under Dublin II that country accepted responsibility for dealing with her claim. The SSHD certified AA’s removal to Belgium as safe.

Further representations resisting removal raising Articles 3 and 8 ECHR in connection to AA’s predicament of being routinely sexually abused and badly beaten by the men around her were certified as clearly unfounded, but her removal directions were temporarily cancelled in as it was argued to the UKBA Competent Authority that there were “reasonable grounds to believe” that she was trafficked into the UK. For the SSHD though, consensual sex in exchange for being smuggled into the UK did not constitute trafficking.

The expert evidence of Ms Skrivankova and Dr Bell confirmed that AA was a vastly abused woman who had been sexually exploited all the way from Baghdad to Belgium. Through her ordeal and owing to “circumstantial coercion” she just had to do what she did; but the Competent Authority disputed the truth of her claims. This was so because while in France on her way to the UK, AA had not sought the French authorities’ protection by claiming asylum. Instead, she returned to her tormentors when the French police released after a period in detention. AA said she chose to come to the UK because of its hospitality to refugees. It was also argued that, if returned to Belgium, AA might commit suicide.

The Trafficking Convention prohibits exploitation, recruitment, transportation etc. of people using deception, fraud and the abuse of power or a position of vulnerability and the like to exploit others; victims’ consent in staging such actions is irrelevant. The three elements of human trafficking involve (a) action (e.g. recruitment etc.); (b) means (coercion); and (c) purpose (exploitation for prostitution etc.).

Vulnerability means a situation where someone has no real or acceptable alternative to submitting to the abuse. Competent Authorities must, therefore, have personnel and structures in place that are committed to combating trafficking in human beings and in helping victims – there is a special emphasis on working collaboratively both domestically and abroad.

Under the above terms, where appropriate, victims ought to be issued with residence permits. Since women and children are more vulnerable, their special situation is recognised. Where there are reasonable grounds to believe that someone is a victim, they ought to be provided assistance and not be removed from the territory of a contracting state until their case is decided.

In sum, the framework involves a “reasonable grounds” stage following which victims are provided help and may not be expelled while in the “recovery and reflection” stage – 45 days in the UK – following which a final decision is made and genuine victims are granted residence permits.

After reviewing the authorities on returning AA to Belgium (and agreeing with the SSHD’s certification of her human rights claim as “clearly unfounded”), the Court of Appeal quaintly saw “a possible risk that the appellant would be trafficked if returned to Belgium” as “relevant to her human rights claim”. However, the Court noted, “the Trafficking Convention does raise distinct and separate issues from those under the human rights claim” and thus dealt with the two claims separately in reverse chronological order.

On 2 June 2011 the Competent Authority decided there were no reasonable grounds to believe that AA was trafficked into the UK. On the one hand, the Authority accepted Dr Bell’s account that AA was potentially vulnerable, but it rejected the belief that she had been “groomed for exploitation” as suggested by her expert Ms Skrivankova. In response,  AA challenged this decision by maintaining that it was irrational because the Authority had misunderstood the “reasonable grounds” test.

The Court of Appeal held that the Competent Authority was entitled to arrive at its conclusions because AA’s version of events, particularly of her time in France, was unreliable and Sir David Keene, at para. 78, noted that:

Consequently, even if the Competent Authority had regarded the appellant as credible – and it was entitled not to – its decision that there were not reasonable grounds to believe her to be a victim of trafficking cannot be impugned. It was one which it was entitled to make.

On 1 June 2011 the SSHD certified AA’s human rights claims as clearly unfounded. The certification was challenged as being irrational on the basis of the SSHD’s limited ability to do so. The correct test under R (L) v SSHD [2003] EWCA Civ. 25 at para. 46 was whether the claim might succeed before an Immigration Judge on an appeal, and the decision shows that the SSHD should not certify the claim on the ground of lack of credibility unless satisfied that nobody could believe the appellant’s story.

After all the SSHD did admit that AA was a vulnerable young Iraqi Kurdish woman. Among the legal points raised by AA’s counsel (Ms Cronin) in her support, with whom Mr Taghavi for the intervening AIRE Centre concurred, was to rely on the opinion of the Advocate General in NS v SSHD [2011] EUECJ C-411/10  (which was in part based on the Charter of Fundamental Rights; but relying on it added nothing to AA’s case; see para. 93)  to advance the proposition that since AA’s transfer to Belgium would expose her to a serious risk of a breach her fundamental rights. In turn, this meant that there was a duty on the UK to examine the asylum application substantively itself. Hence, the SSHD’s use of discretion was perverse.

The Court of Appeal, however, concluded that it had not been shown that there is a real risk of a breach of AA’s Article 3, 4 or 8 rights under the ECHR because of the possibility of her being trafficked on return to Belgium. The Court upheld that the SSHD was entitled to certify AA’s human rights claim as clearly unfounded because it was one which was bound to fail if put before an Immigration Judge on appeal, even if the judge regarded the appellant as a credible witness. It was also explained, at para. 108, that “a decision-maker is not required to make reference to every piece of material or every document” and that grants of asylum could not be based on sympathy alone.

At para. 113 the Court of Appeal, Longmore LJ, added that:

Ms Cronin’s submissions on trafficking effectively amount to saying that a woman whose ambition to get to the United Kingdom and claim asylum here can only be accomplished by having sex with the man who undertakes to transport her to the United Kingdom is ipso facto a victim of trafficking … That situation (unpleasant though it is) does not, to my mind, constitute transportation or harbouring for the purpose of the exploitation of prostitution or practices similar to slavery or servitude … in the Convention. However unpleasant the experience, it cannot be said to approach prostitution, slavery or servitude. Nor can it be justifiable to treat a woman in that situation more favourably than any other asylum seeker whose claim falls to be assessed on its own merits.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Asylum, Council of Europe, ECHR, European Union, Human Trafficking and tagged , , , , , . Bookmark the permalink.

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